People v. Wimberly

• Decision Date: 20 October 2015
• Docket Number: No. 321490,321490
• Citation: People v. Wimberly, No. 321490 (Mich. App. Oct 20, 2015)
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. WILLIE LEE WIMBERLY, Defendant-Appellant.
• Court: Court of Appeal of Michigan

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. WILLIE LEE WIMBERLY, Defendant-Appellant.

No. 321490

STATE OF MICHIGAN COURT OF APPEALS

October 20, 2015

UNPUBLISHED

Wayne Circuit Court

LC No. 13-003881-FC

Before: GLEICHER, P.J., and SAWYER and MURPHY, JJ.

PER CURIAM.

A jury convicted defendant of two counts of assault with intent to commit murder, MCL 750.83, but acquitted him of an additional charge of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant as a second habitual offender, MCL 769.10, to concurrent prison terms of 40 to 60 years for one of the convictions (relating to victim Brendon Charles) and 25 to 37-2/3 years for the other conviction (relating to victim Seylon Dudley). Defendant appeals as right. We affirm.

I. BACKGROUND

Defendant was convicted of aiding or abetting the shooting assaults of Brendon Charles and Seylon Dudley during the early morning hours of January 1, 2013, in an apparent road-rage incident after Charles and Dudley left the MGM Grand Casino in Detroit. Charles and Dudley left the casino in a Range Rover driven by Charles. Defendant, who had also been at the casino, was driving a Ford Expedition with two passengers, one of whom was Steven Smith-Rush ("Rush"). After an altercation between the drivers of the two vehicles while leaving the casino, the Expedition followed the Range Rover onto the I-94 freeway, eventually pulled alongside the vehicle, and then multiple gunshots were fired from the Expedition into the Range Rover. Charles and Dudley were both struck by gunfire.

Defendant and Rush were arrested later in January 2013, but Rush was initially charged only with accessory after the fact. Charles was murdered the day before a joint preliminary examination for defendant and Rush was to be held on January 30, 2013. When the preliminary examination ultimately concluded in April 2013, defendant was bound over for trial on two counts of assault with intent to commit murder and one count of felony-firearm. The district court found insufficient credible evidence to add assault charges against Rush, but bound Rush over for trial on charges of accessory after the fact and giving a false statement to the police.Rush later entered a guilty plea to the latter charge. Defendant testified at trial and admitted driving the Expedition when his passengers fired gunshots into the Range Rover, but argued that he was merely present in the vehicle, was unaware that his passengers intended to fire gunshots into the Range Rover, and did nothing to aid or assist the passengers in the shooting assault of the two victims. The prosecution presented evidence linking defendant to an attempt to bribe Charles if he did not testify at the preliminary examination, and linking him to Charles's murder the day before the scheduled preliminary examination. The jury convicted defendant of two counts of assault with intent to commit murder, but acquitted him of the felony-firearm charge.

II. COUNSEL OF CHOICE

Defendant first argues that the trial court violated his Sixth Amendment right to retain counsel of his choice when it denied his motions to adjourn the trial to permit him to retain substitute counsel of his choice. Defendant's motions were brought three days before trial was scheduled to begin and on the first day of trial in March 2014. We disagree with defendant's challenge.

This Court reviews a trial court's decision affecting a defendant's right to retain counsel of choice and whether to adjourn trial for an abuse of discretion. People v Akins, 259 Mich App 545, 556; 675 NW2d 863 (2003). "An abuse of discretion occurs when the court chooses an outcome that falls outside the range of reasonable and principled outcomes." People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). We review issues of constitutional law de novo. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).

The Sixth Amendment affords a defendant a right to retain counsel of choice. United States v Gonzalez-Lopez, 548 US 140, 144; 126 S Ct 2557; 165 L Ed 2d 409 (2006); People v Aceval, 282 Mich App 379, 386; 764 NW2d 285 (2009). But the right is not absolute. Akins, 259 Mich App at 557. The defendant's right to retain counsel of choice must be balanced against the public's interest in the prompt and effective administration of justice. Aceval, 282 Mich App at 387; Akins, 259 Mich App at 557. In People v Echavarria, 233 Mich App 356, 369; 592 NW2d 737 (2003), this Court observed:

When reviewing a trial court's decision to deny a defense attorney's motion to withdraw and a defendant's motion for a continuance to obtain another attorney, we consider the following factors: (1) whether the defendant is asserting a constitutional right, (2) whether the defendant has a legitimate reason for asserting the right, such as a bona fide dispute with his attorney, (3) whether the defendant was negligent in asserting his right, (4) whether the defendant is merely attempting to delay trial, and (5) whether the defendant demonstrated prejudice resulting from the trial court's decision. [Citation omitted.]

In this case, defendant satisfied the first factor by asserting a constitutional right to retain counsel of his choice. But defendant did not establish a bona fide dispute with his retained counsel over trial strategy at the time of the motions, but rather expressed general dissatisfaction with defense counsel's performance and counsel's alleged lack of communication regarding the development of a general defense of innocence. Furthermore, considering that the trial proceedings were previously delayed because of a mid-trial defense request for a competencyexamination, which the trial court granted, that further delay occurred as a result of the trial court allowing defendant's second retained attorney to enter an appearance as defendant's counsel of choice, and that defendant waited until just before trial to attempt to substitute his third counsel of choice, the trial court's conclusion that defendant was engaging in delay tactics was reasonable and found support in the record.

Under the circumstances, the trial court decision not to allow another adjournment for defendant to proceed with another retained attorney was not an abuse of discretion. Balancing defendant's right to counsel of his choice against the public interest in the prompt and efficient administration of justice, defendant's Sixth Amendment right to counsel of choice was not violated.

III. SUFFICIENCY OF THE EVIDENCE

Defendant argues that the evidence was insufficient to convict him of assault with intent to commit murder because, at most, it only established that he was merely present as the driver of the Expedition at the time of the shooting assaults against Charles and Dudley by his gun-wielding passengers. We disagree.

Due process commands a judgment of acquittal in a criminal case where the evidence at trial is insufficient to sustain a conviction. People v Lemmon, 456 Mich 625, 633-634; 576 NW2d 129 (1998). We review de novo the issue regarding whether there was sufficient evidence to support a conviction. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). In reviewing the sufficiency of the evidence, this Court must view the evidence - whether direct or circumstantial - in a light most favorable to the prosecutor and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt. People v Reese, 491 Mich 127, 139; 815 NW2d 85 (2012); People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). A jury, and not an appellate court, observes the witnesses and listens to their testimony; therefore, an appellate court must not interfere with the jury's role in assessing the weight of the evidence and the credibility of the witnesses. People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748 (1992). Circumstantial evidence and the reasonable inferences that arise from such evidence can constitute satisfactory proof of the elements of the crime. People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999). The prosecution need not negate every reasonable theory of innocence, but need only prove the elements of the crime in the face of whatever contradictory evidence is provided by the defendant. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). We resolve all conflicts in the evidence in favor of the prosecution. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).

Assault with intent to commit murder is a specific intent crime. People v Lipps, 167 Mich App 99, 105; 421 NW2d 586 (1988). "The elements of assault with intent to commit murder are: (1) an assault, (2) with an actual intent to kill, (3) which, if successful, would make the killing murder." People v Brown, 267 Mich App 141, 147-148; 703 NW2d 230 (2005) (citations and quotation marks omitted). With respect to aiding or abetting, "[e]very person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense."MCL 767.39. A conviction under an aiding or abetting theory requires proof that "the defendant aided or abetted the commission of an offense and that the defendant intended to aid the charged offense, knew the principal intended to commit the charged offense, or, alternatively, that the charged offense was a natural and probable consequence of the commission of the intended offense." People v Robinson, 475 Mich 1, 15; 715 NW2d 44 (2006). "The phrase 'aids and abets' is used to describe any type of assistance given to the perpetrator of a crime by words or deeds that are intended to encourage, support, or incite the commission of that crime." People v Moore, 470 Mich 56, 63; 679 NW2d 41 (2004). However, "[m]ere presence, even with knowledge...